Six Words Justify Consecutive Terms

State v. Kong (January 31, 2013)

Background. Stanley Kong was charged with various drug offenses in two separate prosecutions. He petitioned into the Maui Drug Court Program. At the hearing on the petition, the circuit court explained that if violated the terms and conditions of the Maui Drug Court Program, he could be terminated from the program. The circuit court then found that Kong waived his rights "as indicated in the petition for admission" to the program and he was admitted. Kong participated in the program for several months, but at a status hearing, Kong admitted that he had relapsed and "used drugs." The circuit court informed Kong that he was going to give him another chance and keep him in the program. At the next scheduled hearing, Kong did not show up. The circuit court issued a bench warrant. He was picked up and appeared before the circuit court in custody.

At that initial hearing, Kong told the court that he wanted to "self-terminate" himself and requested to have bail set. The circuit court explained that he had a right to have a termination hearing with his own lawyer "to determine if termination is appropriate." The circuit court also explained that if he was terminated, there would be a "stipulated facts" trial in which the facts had already been agreed upon and would be found guilty as charged. Kong said he understood. He said he wanted to proceed with a self-termination, but that the public defender's office may be conflicted. The circuit court set a hearing for a motion to withdraw.

At the next hearing, Kong said that he wanted to self-terminate. The circuit court found that he terminated himself from the program and went into a stipulated-facts trial, where he was found guilty.

At the sentencing hearing, Kong said that he did "not want to stipulate to the contents of the [presentence investigation] report in this case[.]" The circuit court responded that that was "fine." The circuit court imposed consecutive sentences for the following reason:

Taking into consideration all of the factors set forth in Hawaii Revised Statutes Section 706-606, including the extensive record of the defendant, which includes six burglary convictions, which really represents--I'm sorry. Yeah, six burglary convictions, ten felonies, which represent a lot of harm in our community.

The Court is going to impose the following sentence in this matter. The defendant will be committed to the care and custody of the Director of the Department of Public Safety for a period of ten years on Count 1, five years on Count 2.

. . . .

In view of his extensive criminality, the Court is going to make these counts run consecutive for a total of fifteen years, mittimus forthwith, full credit for time served.

Kong appealed.

The Hussein Requirement: Court must Provide the Reasons for Imposing Consecutive Term of Imprisonment. "If multiple terms of imprisonment are imposed on a defendant . . . the terms may run concurrently or consecutively." HRS § 706-668.5(1). "Absent clear evidence to the contrary, it is presumed that a sentencing court will have considered all factors before imposing concurrent or consecutive terms of imprisonment under HRS § 706-606." State v. Hussein, 122 Hawai'i495, 503, 229 P.3d 313, 321 (2010). Recently, the HSC held that "circuit courts must state on the record at the time of sentencing the reasons for imposing a consecutive sentence" instead of a concurrent one. Id. at 510, 229 P.3d at 328.

The HSC identified two purposes for this requirement:

First, reasons identify the facts or circumstances within the range of statutory factors that a court considers important in determining that  a consecutive sentence is appropriate. An express statement, which evinces not merely consideration of the factors, but recites the specific circumstances that led the court to impose sentences consecutively in a particular case, provides a meaningful rationale to the defendant, the victim, and the public.

Second, reasons provide the conclusions drawn by the court from consideration of all the facts that pertain to the statutory factors. It is vital, for example, for the defendant to be specifically informed that the court has concluded that he or she is dangerous to the safety of the public, or poses an unacceptable risk of re-offending, or that rehabilitation appears unlikely due to his or her lack of motivation and a failure to demonstrate any interest in treatment, or that the multiplicity of offenses and victims and the impact upon the victims' lives warrant imposition of a consecutive term.

Id. at 509-10, 299 P.3d at 327-28.

The Words "Extensive Criminality" is Enough. The ICA examined what the circuit court stated before imposing the entire sentence. It started with the "extensive record" cited by the circuit court that, according to the sentencing court, "represents a lot of harm in our community" as well as the "extensive criminality" justifying the consecutive term. This was enough of a given reason for the ICA that showed the circuit court's conclusion that Kong was "dangerous to the safety of the public, or poses an unacceptable risk of re-offending[.]" Id. at 509, 229 P.3d at 327.

The ICA noted that Kong himself had relapsed and re-offended and was given a chance to stay in the program. Still, Kong opted to self-terminate. This suggested to the ICA that rehabilitation was unlikely due to a failure of motivation--another Hussein factor. Thus, the ICA held that the circuit court did not abuse its discretion in imposing a consecutive term.

Intellectual Sleight of Hand? According to the ICA, the issue was whether the circuit court abused its discretion in imposing a consecutive term. If so, then the analysis makes sense. The ICA looked at the entire record--including Kong's prior record and poor performance in the drug court program--and deferred to the circuit court's ruling. But is that really it?

Hussein was pretty clear: sentencing courts "must state its reasons as to why a consecutive sentence rather than a concurrent one was required." Id. at 509, 229 P.2d at 327. Isn't the issue really whether the circuit court's brief reasoning--"extensive criminality"--sufficient in light of the bright-line Hussein rule? If that's the issue, then it seems that the ICA missed the mark. It has nothing to do with an abuse of discretion. The court either provided a reason or it did not.

Inaccuracies in the PSI Report Waived for Failing to Object. "Unless conceded by the defendant, the state is required to show, by evidence satisfactory to the court, the fact of the defendant's prior conviction, as well as the fact of his representation by counsel, or the waiver thereof, at the time of his prior conviction." State v. Afong, 61 Haw. 281, 282, 602 P.2d 927, 929 (1979). Later, the HSC held that convictions listed in a PSI report "may be used against [the] defendant except those as to which the defendant timely responds with a good faith challenge on the record that the prior criminal conviction was (1) uncounseled, (2) otherwise invalidly entered and/or (3) not against the defendant." State v.Heggland, 118 Hawai'i 425, 439-40, 193 P.3d 341, 355-56 (2008).

Here, Kong argued that one of the convictions should not have been listed because that particular conviction was dismissed in 1995. He also argued that he did not "concede" the contents of the PSI. According to the ICA, even though Kong told the sentencing court that he did not want to stipulate to the contents of the PSI, that did not amount to a good-faith challenge to the conviction. Kong, according to the ICA, conceded the conviction. Nor was it plain error because the circuit court's consecutive term was based on "Kong's extensive criminal record in general" and not specifically that prior conviction.

The Circuit Court's Termination was Piecemeal, but not Error. The ICA also rejected Kong's argument that the waiver of his right to a full termination hearing was invalid. "A waiver is the knowing, intelligent, and voluntary relinquishment of a known right." State v. Friedman, 93 Hawai'i 63, 68, 996 P.2d 268, 273 (2000). In order to ensure a voluntary and knowing waiver, the court must first engage "in a personal on-the-record colloquy with the defendant[.]" State v. Murray, 116 Hawai'i 3, 12, 169 P.3d 955, 964 (2007). According to the ICA, Kong's wavier was voluntarily given. The ICA noted that when Kong first entered the drug court program, the trial court warned him that he "give up a lot of important legal rights" and explained that if he was terminated, then "the Court finds you guilty, and you are set for sentencing. That's it." Kong entered the program after that.

Later, when Kong said he wanted to self-terminate, the Court explained that he had a right to a termination hearing. Kong said he understood and the trial court explained the consequences of termination. Kong said he understood and wanted to self-terminate. About a week later, Kong still said he wanted to self-terminate. Kong confirmed that his mind was clear and not taking any medicine or drugs. According to the ICA, the record suggested that "Kong's strategy was to self-terminate to expedite sentencing because he was hoping for another chance at probation." In light of all of this, the ICA held that Kong voluntarily waived his right to a termination hearing.

Editor's Note. In the interest of full disclosure, my friend, colleague, and fellow Jayhawk, Samuel G. MacRoberts, is Mr. Kong's appellate counsel.